In modern America, we typically think of discriminatory laws as being a thing of the past. We lament the evils of the past such as slavery and segregation and celebrate the abolition of those institutions and the laws, which allowed them to flourish. When the U.S. government recently implemented changes to its immigration policies which appear to discriminate against people based on their ethnicity or national origin, such as the recent travel ban which effects travelers from seven different countries, or the policy of separating families who attempt to cross the U.S. – Mexico border, many Americans reacted with shock and revulsion. The protests which greeted these policy changes indicate that the American people have a commendable commitment to the principle that laws, including immigration laws, should apply to all people in the same way. Unfortunately, for most of the history of the United States, immigration laws were unapologetically discriminatory, often with the intent of keeping people from “undesirable” ethnic groups out of the country. Here’s a brief look at the development of United States immigration laws in the 18th and 19th centuries.
The Naturalization Act of 1790
In 1790, two years after the ratification of the U.S. Constitution, Congress passed the first law governing who was allowed to become a citizen of the United States. Naturalization was restricted to “free white person[s], who shall have resided within the limits and under the jurisdiction of the United States for the term of two years,” and who also possessed “good moral character.” Restricting citizenship to white people was not simply an attempt to keep other ethnic groups out of the United States; it was also intended to disenfranchise certain groups living within the U.S., particularly Native Americans and African Americans. The lack of a path to citizenship meant that people who didn’t qualify as white could be denied the ability to vote or own real property. The very first American law regarding immigration and naturalization established a system in which citizenship and full civic participation was primarily restricted to the white population.
Several additional naturalization acts were passed over the next decade, often changing the residency requirement for would-be citizens. Between 1790 and 1802, the requirement was extended from two years to five years, then fourteen years, before finally being restored to five years in 1802; the five year residency requirement remains in effect today for most people who wish to become naturalized citizens.
The Naturalization Act of 1870
While Congress may have been willing to repeatedly change the residency requirements set forth in the Naturalization Act of 1790, there was one aspect of the Act it proved uninterested in changing: for 80 years, the ability to become a naturalized citizen was limited to white people. It was only after the devastation of the Civil War, the abolition of slavery, and the adoption of the Fourteenth Amendment to the Constitution (which granted citizenship to all persons born in the United States, including African Americans) that Congress passed the Naturalization Act of 1870, which permitted the naturalization of “aliens of African nativity and to persons of African descent.”
The Page Act of 1875
Anti-Chinese xenophobia led Congress to pass the Page Act, which was the first law to explicitly restrict certain classes of people from immigrating to the United States. In addition to setting some regulations regarding the transportation of laborers from Asia to the United States, the act forbid the immigration of felons and prostitutes to the United States. Even though on its face the act was intended to prevent criminal behavior, in practice the law was intensely discriminatory. American authorities acted with the presumption that Chinese women who sought to immigrate to the United States were prostitutes unless they were able to prove otherwise, with the result that the immigration of Chinese women to the U.S. ceased almost entirely. Perhaps not coincidentally, this also meant that Chinese laborers in the United States were generally unable to marry or start a family in the U.S.
The Chinese Exclusion Act of 1882
Legalized discrimination against Chinese immigrants reached new heights with the Chinese Exclusion Act. The act established a ten year ban on Chinese laborers entering the United States, and required Chinese people leaving the United States to obtain a certification which would allow them to re-enter the country. The Act also prevented State and Federal courts from granting citizenship to Chinese residents. The act was amended in 1884 to apply to all people of Chinese descent, regardless of their actual nationality. Less than 20 years after abolishing slavery and granting citizenship to former slaves, Congress had established a new legal regime which discriminated against a large population of American residents based on their race and national origin.
The 1891 Immigration Act
The 1891 Immigration Act is perhaps most significant for establishing the office of Superintendent of Immigration, the nation’s first dedicated immigration service and the precursor to today’s alphabet soup of immigration agencies. The Act also forbid the immigration of “all idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or dangerous contagious disease,” as well as felons and certain other criminals, polygamists, and certain classes of people whose passage had been paid for by someone else. Many of these restrictions, particularly the restrictions on people likely to become a public charge, people suffering from contagious disease, and people intending to practice polygamy, are still enshrined in today’s immigration laws.
It is worth noting that, as was the case with the Page Act’s provisions regarding prostitution, many of these criteria were targeted at particular ethnic or religious groups, despite being apparently nondiscriminatory. For example, the restrictions on people who had not paid their own passage were intended to prevent Chinese contract laborers out of the United States, while the restriction on polygamy was primarily intended to prevent Mormons from immigrating.
The Geary Act of 1892
Congress passed the Geary Act to replace the Chinese Exclusion Act, which expired after ten years. The Geary Act extended the exclusion of Chinese laborers from the U.S. for another ten years, and required Chinese people in the U.S. to obtain certificates to prove they had entered the U.S. legally; these can be seen as a precursor to the “green card” which lawful permanent residents are required to carry today. Any people of Chinese descent who did not have a residency certificate could be sentenced to up to a year of hard labor and subsequently deported; they could avoid this punishment if they could demonstrate that they had been unable to obtain a certificate due to an accident, illness, or “other unavoidable cause” and could also produce “at least one credible white witness” to testify they had been residents of the United States when the act went into effect.
The Geary Act proved to be difficult to enforce; only 14 percent of the Chinese laborers required to register under the law actually did so. Furthermore, the act as written did not provide any funding for deportations; the government sought to make Chinese laborers pay for their own deportations. Not surprisingly, many of those facing deportation prepared to pay for lawyers instead, leading to a legal controversy that went all the way to the Supreme Court, which eventually upheld the Geary Act in the case of Fong Yue Ting v. United States.
It is estimated that about 85,000 Chinese people living in the United States refused to register under the act, and deporting them would have cost about $7 million. Instead, Congress authorized $60,000 for the enforcement of the Geary Act. This was emblematic of yet another ongoing theme in American immigration law: It’s easy for politicians to appeal to nativist prejudices by indulging in anti-immigrant rhetoric and proposing anti-immigrant legislation. It’s expensive to actually enforce that legislation. And oddly enough, trying to push the costs onto people who don’t want to pay them, whether it’s by trying to force people in the U.S. to pay for their own deportations, or trying to convince foreign citizens to pay for a wall, isn’t a very effective way to fund immigration enforcement.
Ellis Island and Angel Island
In 1892, the same year that the Geary Act was passed, Ellis Island opened as an immigration station, becoming the largest point of entry for immigrants on the East Coast. The experience of immigrants seeking entry through Ellis Island presents a striking contrast to the experience of those immigrants seeking entry through its West Coast equivalent, Angel Island, which opened in 1910. Over the years that Ellis Island was operational, about 1% of immigrants seeking admission there were turned away, often for health reasons. At Angel Island, where Chinese and other Asian immigrants were subjected to extensive cross-examination and thorough physical examinations, the rejection rate was 18%. According to historian Roger Daniels in his book Guarding the Golden Door, “Most [immigration officials] concluded that Chinese were ‘born liars’ and could not be trusted under any circumstances. As a result they tended to treat all Chinese entrants as if they were criminals. It was relatively easy for these attitudes to shift from Chinese to other immigrants, particularly since a whole series of immigration commissioners drawn from the ranks of trade unions came to their posts with built-in prejudices against immigrants and persistently urged Congress to enact further restrictions.”
In light of the differences in the historical treatment of European immigrants at Ellis Island versus Asian immigrants at Angel Island, it’s interesting to compare the upbeat website of the Statue of Liberty-Ellis Island Foundation with the more nuanced website of the Angel Island Immigration Station Foundation.
Immigration Law as Social Engineering
Even though the foregoing discussion doesn’t touch on the development of U.S. immigration law in the 20th century, it should make clear that from the very beginning, American immigration laws have often been constructed to reinforce particular racial, ethnic, or religious qualifications which determine who is allowed to be an American citizen or resident. The very first naturalization law passed by the United States Congress restricted naturalization to people who qualified as “white,” granting them political and civic privileges that were denied to other groups such as Native Americans and African Americans. After the Civil War, when African Americans who had previously been denied citizenship received it under the Fourteenth Amendment, nativist activists and politicians targeted other groups for exclusion, with Chinese immigrants being a particular target. Even facially neutral laws, such as those against prostitution and polygamy, were used to disproportionately target certain nationalities and religions. Finally, in the early 20th century, the massive difference in the rejection rate between the mostly European immigrants seeking entry through Ellis Island and the mostly Asian immigrants seeking entry through Angel Islands demonstrate the disparity of outcomes that can arise if immigration laws are enforced more stringently against certain groups.
As brief and simplified as this overview of early immigration laws has been, it’s helpful to keep this history in mind whenever you listen to modern debates about immigration law. Throughout American history, immigration laws have never been entirely neutral and nondiscriminatory; they’ve always favored some groups over others, whether explicitly or implicitly. Historically, they have represented an attempt to impose a certain demographic order upon the population of the U.S. by favoring racial, ethnic, religious, or political groups that are considered to have the potential to become “good Americans,” and by keeping out other groups that are considered “undesirable.” Even today, when politicians or pundits propose a change to U.S. immigration laws, it’s worthwhile to ask ourselves which group or groups that change is intended to favor, and what kind of order that change would impose upon the United States and its population.